Citation NR: 9800781
Decision Date: 01/13/98 Archive Date: 01/21/98
DOCKET NO. 95-38 065 ) DATE
)
)
On appeal from the
U.S. Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina
THE ISSUES
1. Entitlement to a temporary total post-surgical
convalescent rating based on hospitalization and surgery for
a right knee disorder in August 1994.
2. Entitlement to an increased rating for a right knee
disorder, postoperative status, currently evaluated as 10
percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Thomas A. Pluta, Counsel
INTRODUCTION
The veteran had active military service from August 1979 to
October 1982.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 1994 rating decision of the
RO which denied entitlement to the benefits reflected on the
title page of this decision. The veteran had a hearing on
appeal before an RO hearing officer in June 1997. The
hearing officer's decision was issued in August 1997 in the
form of a Supplemental Statement of the Case (SSOC).
REMAND
Despite comprehensive development of the record on appeal by
the RO hearing officer, the Board is constrained to remand
this appeal, primarily to comply with precedent decisions of
the U.S. Court of Veterans Appeals (Court). There is also a
question concerning the veteran's entitlement to a temporary
total post-surgical convalescent rating, which must be
further clarified.
For background purposes, the Board has noted that, during
service in August 1982, the veteran underwent an open
reduction and internal fixation of the right patella
following a fracture of the patella at that time. During VA
hospitalization from March to April 1983, the veteran
underwent removal of wires and inspection of the knee joint
with arthroscopy.
The veteran was hospitalized at the VA Medical Center in
Durham, North Carolina from August 15 to 19, 1994, during
which time he underwent a diagnostic and operative
arthroscopy of the right knee. His chief complaint at the
time was right knee pain, and the discharge diagnosis was
chondromalacia and osteochondral defects of the right knee.
The hospital report indicated that, at the time of discharge
from the hospital, the veteran was able to engage in weight-
bearing as tolerated, and activity as tolerated, and that he
may return to work. However, the veteran was unemployed at
the time and was in receipt of Social Security disability
benefits based essentially on psychiatric impairment.
Following discharge from the hospital, the veteran had VA
orthopedic examinations of the right knee in November 1995
and May 1997. Neither examination comported with the
requirements set forth in 38 C.F.R. §§ 4.40 and 4.45 (1996)
and the guidelines set forth in DeLuca v. Brown, 8 Vet. App.
205 (1995).
The RO hearing officer did consider the above-noted
regulations and Court precedent in issuing his decision.
However, the clinical evidence which he had before him for
review was not sufficient for that consideration to withstand
judicial scrutiny, if this case is appealed to the Court.
At the June 1997 RO hearing, the veteran testified that, at
the time of his discharge from the VA hospital in August
1994, his right lower extremity was immobilized from the hip
down to the ankle. It was further indicated that the right
lower extremity was immobilized for a period of 30 days to
six weeks following discharge from the hospital. Inasmuch as
therapeutic immobilization of a major joint following surgery
is one basis for entitlement to a temporary total post-
surgical convalescent rating, we must ask for comment from
the Chief of Orthopedic Surgery at the VA Hospital in Durham,
North Carolina before deciding this issue on the merits.
In view of the foregoing, the case is REMANDED to the RO for
the following action:
1. All VA outpatient treatment records
dated after June 13, 1997, the date of
the most recent outpatient treatment
records in the veteran's claims folder,
should be obtained from the VA Medical
Center in Durham, North Carolina for
association with the claims folder.
2. The Chief of Orthopedic Surgery, or
his designee, at the VA Medical Center in
Durham, North Carolina should review all
pertinent records of the veteran's
hospitalization and surgery in August
1994, and the pertinent VA outpatient
treatment records following this period
of hospitalization, and issue a report
which responds to the following
questions:
a. Was the right knee
therapeutically immobilized at the
time of the veteran's discharge from
the VA hospital in August 1994, and,
if so, how long did such therapeutic
immobilization continue?
b. Following the surgery in August
1994, was post-hospital
convalescence required, and if so,
for what period of time?
3. The veteran should be accorded a VA
orthopedic examination to determine the
current severity of his service-connected
right knee disorder, postoperative
status. The claims folder must be made
available to the examining physician
prior to the examination, and he should
indicate in the report of examination
that a review of the claims folder,
including this REMAND, was accomplished.
The examiner should conduct range of
motion studies of the right knee and
specify the range of flexion and
extension in degrees. He should also
comment on whether there is slight,
moderate, or severe impairment of the
right knee, as reflected by any recurrent
subluxation or lateral instability. The
examiner should also comment on the
effects of the veteran's right knee
disability on ordinary activity and
describe how it impairs him functionally.
He should also specifically comment on
the degree of functional loss, if any,
resulting from pain on undertaking
motion, weakened movement, excess
fatigability, or incoordination, as
contemplated by DeLuca, supra, and
38 C.F.R. §§ 4.40 and 4.45.
4. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
aforementioned development has been
conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
The RO should then review the record and the claims should be
readjudicated. If the determinations remain adverse to the
veteran, both he and his representative should be provided
with an SSOC. The veteran and his representative should be
given an opportunity to respond within the applicable time
period. Thereafter, the case should be returned to the Board
for further appellate consideration, if in order. The
appellant need take no action until notified. The purpose of
this REMAND is to procure clarifying data and to comply with
a precedent Court decision.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that
have been remanded by the Board and the Court. See M21-1,
Part IV, paras. 8.44-8.45 and 38.02-38.03.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (1996).
- 2 -